A proposal to demolish historic structures and construct a private marine terminal serving large cargo vessels and a cement plant tenant at the mouth of the Napa River has been a source of controversy in Vallejo for the past six years. The basis of this argument for recusal is in part a well-documented improper level of bias and alignment of public and private interests by Vallejo councilmembers prior to environmental review and approval of the project, sufficient to undermine the intent and purpose of the California Environmental Quality Act.

There are no tripwires or bright lines to cross that indicate when such a level of unacceptable bias prior to environmental review occurs. It must be assessed based on the totality of words and actions that add up to a level of lead agency bias sufficient to defeat the purpose of the CEQA process. In this case a majority of the lead agency and special interest representatives colluded in secret with the applicants and used the Vallejo Marine Terminal and Orcem America project to advance a private development initiative that undercut the City’s public planning process.

The participants in this clandestine, well-organized effort left written records of their activity, subsequently revealed through public records requests. These communications reflect an early enthusiastic commitment by members of the lead agency to the VMT/Orcem project in the absence of any information regarding the potential negative environmental impacts. The willingness of lead agency members to ignore City policy, commandeer public resources in support of a private initiative, repeatedly violate the noninterference clause in the City Charter, and betray the public trust in the open and participatory function of local government all serve to indicate an extreme and unacceptable level of bias. The three Vallejo councilmembers who remain on the lead agency and colluded with the applicants in secret for a year and a half must now recuse from any votes regarding this project application.

Introduction

The California Environmental Quality Act is designed to force lead agencies to stop and think about the environmental impacts that would result from projects that require their approval. For the proposed Vallejo Marine Terminal and Orcem America project, that lead agency is the seven member Vallejo City Council. A lead agency may choose to approve a project with significant negative environmental impacts if it finds that the benefits of the project would outweigh those negative impacts. If the lead agency aligns itself with the interests of the applicants and their project before the required environmental analysis can reveal the negative impacts to be weighed against perceived economic benefits, the CEQA process devolves into a meaningless and expensive exercise in support of a foregone conclusion.

The court explicated the proper nature of the relationship between a lead agency and project applicants in Citizens For Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al. (Real Parties) (5th Dist. 2003) 217 Cal.App.4th 889, Case No. F065690:

“The relationship between a lead agency and project applicant is unique. Before project approval, the agency must objectively judge whether the project as proposed is environmentally acceptable and therefore must make a decision about whether it will align itself with the applicant in part, in whole, or not at all. Only after approving the proposal can the agency be said to join forces with the applicant. There may be, and typically are, extensive communications between them, but they cannot yet be said to be “on the same side.” Before project approval, therefore, the agency does not have even partially common interests with the applicant. The nature of its interest is held in abeyance until it decides whether to approve the project.”

“In saying this, we do not mean to imply that the members of an agency's governing board are legally prevented from having a favorable opinion of a project from the outset. We also do not mean to imply that the agency and applicant should not work together on the EIR. Agencies and applicants routinely do so and CEQA contemplates that they will. The point is simply that the lead agency, as an agency, cannot have any commitment to the project as proposed until after environmental review is complete. This means its interests as it pursues the environmental review process are fundamentally not aligned with those of the applicant, ...”

The record of private communication plainly reveals that a majority of the lead agency regarded themselves to be “on the same side" as the applicants long before any environmental review. A majority of the City Council - three of them current voting members - went far beyond simply having a favorable opinion of the project prior to any impact analysis, but instead committed to the project at multiple levels in an organized effort hidden from public view. Their abandonment of objectivity is captured in the extraordinary documented measures taken to incorporate the VMT/Orcem project as an integral part of their private development plan for the City’s waterfront without regard for environmental consequences.

That bare majority of the Vallejo City Council colluded with the applicants through an ad hoc unsanctioned secret committee in an organized effort to use approval of the VMT/Orcem project to further a private vision for the future uses of the Mare Island Strait. That private vision stands in sharp conflict with the public vision that grew out of the concurrent public process to update the City’s general plan, while it would benefit an assortment of local financial interests and the political benefactors of the participating councilmembers.

The unmistakable alignment and mingling of these public and private interests occurred well before release of the preliminary draft Environmental Impact Report and before the many identified negative impacts were known to these lead agency officials. Their actions undermine the intent and purpose of CEQA and the interest of citizens in the transparent function of local representative government.

Sperry Mills Site in South Vallejo - The shoreline is public trust land leased from the City

Early indications

The long record of bias on the part of City officials and members of City staff in favor of the applicants begins with the resurrection and transfer of a lease for public lands entrusted to the City, long held by General Mills until they abandoned the site in 2004. The lease would be required to reconstruct and operate a proposed docking facility for cargo ships at the site in south Vallejo. California Public Resources Code PRC § 21160 stipulates:

“Whenever any person applies to any public agency for a lease, permit, license, certificate, or other entitlement for use, the public agency may require that person to submit data and information which may be necessary to enable the public agency to determine whether the proposed project may have a significant effect on the environment or to prepare an environmental impact report.”

Timely environmental review occurs as early in the application process as possible.

The actions surrounding the revival, amendment, and transfer of the lapsed lease indicate the beginnings of an improper alignment of interests that would come to characterize the application review process throughout. The revival of a lapsed long term lease with a tenant who abandoned the site eight years before was unusual in itself, given the gap in time and differences in the nature of the proposed and former uses. The record also shows a deliberate effort to avoid the required environmental impact report for a proposed project which would predictably result in significant environmental impacts, as stipulated in the amended lease document itself.

The exemption cited for the action in order to avoid CEQA review unquestionably did not apply. The City cited a categorical exemption for a minor hazardous waste cleanup for the lease transfer, which is a far cry from the major development initiative actually described in the amended lease provisions. Not only does the amended lease agreement signed by the City allow for demolition of historic structures and major new development on the site, it incentivizes and subsidizes this impactful development activity with eight million dollars in rent credits.

Without a doubt the lease should have required a detailed project description and triggered an environmental impact analysis. While the statute of limitations passed before the public became aware of the misconduct involving the exemption, the opaque and questionable nature of the series of transactions surrounding the lease of public trust lands serves as an early indicator of the extent to which an improper alignment of public and private interests would undermine the proper working of the CEQA review process.

We do not claim to possess evidence that the individual lead agency members subject to this call for recusal had a direct hand in the questionable actions surrounding the revival and transfer of the lease, only that these actions serve to indicate the level of interest among a group of influential people at City Hall in this private project. In words and actions a majority of the lead agency would soon declare their allegiance to this faction and reveal some of the motives for improperly aligning themselves with the applicants and their project without considering environmental impacts.

The extent to which members of the Vallejo City Council mingled their own private interests and City resources with those of the applicants prior to environmental review was only subsequently revealed through the efforts of concerned citizens making public records requests.

The Mare Island Straits Economic Development Committee (MISEDC)

By 2014 dueling City planning and development initiatives were underway, both public and private, aiming to shape the character of future development along the Mare Island Strait waterfront. The delayed environmental impact analysis for the proposed Vallejo Marine Terminal project was in the early stages, now with an Orcem slag cement plant added to the project description as a tenant. The City ramped up its two-year three million dollar public participatory process to develop a long overdue update to the City’s general plan. The Vallejo City Council voted to form a Mare Island Economic Development Committee, which included then-councilmember and current Mayor Sampayan. It never convened a meeting.

Councilmembers Malgapo and Dew-Costa organized a private ad hoc committee in April instead that they named the Mare Island Straits Economic Development Committee (MISEDC). Councilmember Sampayan was not invited to join this effort. The committee soon added Councilmember Verder-Aliga to its official roster of members, along with the VMT/Orcem project applicants and an assortment of local and regional special interest representatives and political donors, all with a stake in procuring federal funding to facilitate industrial development along Vallejo’s waterfront. Councilmember Malgapo served as the committee chair, and reminds committee members in an August 19, 2014 email retrieved through a public records request that their activity must not be made public: “Reminder: Our meetings are privileged and attendance by invitation only.”

This ad hoc committee differed from the stillborn Council-sanctioned economic development committee in a number of important respects. For one it was a secret committee, known only to four of the seven councilmembers: Mayor Osby Davis, Jess Malgapo, Pippin Dew-Costa, and Rozzana Verder-Aliga. Councilmembers Sampayan, Miessner, and McConnell remained unaware of the existence of the MISEDC, even while committee chair Malgapo was commandeering City staff and resources to further the goals of their private organization. It would be well over a year before the excluded minority of councilmembers would begin to learn what had been going on behind the scenes.

The clandestine ad hoc committee was narrowly focused on getting the federal government to subsidize heavy industry development along the length of the Strait. After the naval base that long served as the foundation for the local economy shut down in the late nineties, the shock waves continued to reverberate through a City bankruptcy and the global financial crisis. A faction of local officials and business interests looked to replace the Navy presence with private heavy industry as a desirable economic development model for the future. The general plan update process found little to no support in the broader community for that approach.

The Mare Island Strait at the terminus of the Napa River was never really suitable as a shipping lane for deep draft vessels because of the continual deposition of sediment in the channel. The Army Corps of Engineers engaged in a routine dredging program to maintain the needed channel depth required by the Navy. With the closure of the naval base that practice ended and the channel stabilized at a depth of 25 feet, sufficient for navigation by most vessels, but not enough for modern deep draft cargo ships. Following the base closure, then Mayor and future MISEDC member Intintoli lobbied the Army Corps in 1999 to resume deep dredging the length of Mare Island Strait, but was informed that such a federal expense could no longer be justified by the low level of ship traffic.

This left a handful of private business interests like Mare Island Dry Dock (MIDD) to shoulder the cost of spot dredging for their own facilities, along with the City marina. More than a decade later the ad hoc MISEDC launched an extensive behind-the-scenes lobbying effort to entice the Army Corps to resume regular deep dredging the length of the Strait, and maintain a depth around 38 feet to accommodate large deep draft vessels. The committee included a variety of special interest representatives that would benefit from the federal subsidy and the industrial development that would follow. The VMT/Orcem project would soon become an integral part of this lobbying campaign, long before the environmental impacts related to the project were known or considered.

Why did the ad hoc committee members feel such a need to keep the activities of this unsanctioned organization hidden from the public and three of their fellow elected representatives? A look at the language emerging from the concurrent public planning process to update the Vallejo General Plan reveals a stark contrast between the public vision for the waterfront and the vision entertained by these special interests. Where the MISEDC members picture a marine superhighway and a subsequent renaissance of heavy industry on the city’s waterfront, the public planning process was demonstrating that a broad spectrum of the public had something very different in mind.

Vallejo residents participate in a Propel Vallejo workshop, contributing to a long overdue update to the General Plan that the City says will guide future development.

The Public Face of Local Government

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In April of 2014 as MISEDC was coalescing out of public view, the City of Vallejo was asking residents to talk about their values and vision for the future as part of a community-wide planning effort to develop Guiding Principles for a long overdue General Plan update. According to the city web site: “The Guiding Principles define the kind of community Vallejoans want, describing our shared values and our vision for our city. Working together, Vallejo residents, businesses, and community groups have developed this short list of statements that will guide the General Plan Update, the Sonoma Boulevard Specific Plan, and the Zoning Code Update over the next three years.”

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The City of Vallejo web site emphasizes the broad base of support for its official sanctioned planning vision: “Collaborating successfully with local community organizations, we also took extra steps to include students at Vallejo High School, residents of South Vallejo, and members of local community groups in the conversation to make sure they had a voice in the process.” In July of 2014, as the MISEDC councilmembers continued to meet behind closed doors, the entire city council officially approved the Guiding Principles developed with community participation. These principles include:

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Active, Participatory Community

Vallejo supports and depends on active community participation. Vallejo provides timely and understandable information on planning issues and projects, and community members participate directly in shaping plans and policies for the city’s future.

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Healthy Community

Vallejo promotes the health of its residents and recognizes the value of a proactive, preventative approach to health. All Vallejo neighborhoods have easy access to healthy food, including organic food and locally grown food from school and community gardens.

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Beautiful City

Vallejo values and showcases the City’s beauty, historic character, compatible architecture, abundant trees, and local ecology. Gateways into the community make positive, welcoming impressions, and Vallejo’s pride is displayed on every block in the way people care for their homes, gardens, businesses, and neighborhoods.

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A Place People Want To Be

Vallejo’s vibrant downtown, attractive waterfront and open spaces, livable neighborhoods, and varied destinations draw people from the Bay Area and beyond. Vallejo is a place where people of all ages want to be, day and night — to live, work, shop, and recreate.

Iconic Waterfront

Vallejo treasures its waterfront as a centerpiece of the community, with a promenade, multi-use trails, natural open space, and access to water activities. It is a place for community gathering, exercising, socializing, shopping, dining out and having fun.

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Environmental Stewardship

Vallejo pursues and promotes environmental education; protects and manages its watersheds, wetlands, and wildlife habitats; and embraces businesses and industries that are sensitive to the environment. It is a community where environmental stewardship is an asset that attracts people and businesses.

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That is what the residents of Vallejo say they want for the future of their waterfront and character of their city. There is no mention in these Guiding Principles of any desire to attract new heavy industry to Vallejo’s iconic waterfront. The goals pursued by the clandestine self-styled ‘citizens committee’ running a parallel hidden planning process would clearly fail to draw broad public support. That awareness on the part of the participating MISEDC councilmembers explains why they felt the need to hide their activity and ignore the Guiding Principles in private even as they voted to approve them in public.

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The Hidden Face of Local Government

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According to committee agendas, obtained by public records request from the city, the ad hoc MISEDC had two stated goals:

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Conduct research and take action necessary to secure federal funding for the long term and sustained dredging of Mare Island Straits for public, private, commercial use.

Explore how Mare Island Straits could be transformed into an economic driver for the City of Vallejo and Solano County."

The ad hoc committee set out on an extensive organized lobbying campaign using paid City staff to convince the Army Corps that sufficient commercial shipping activity exists to justify significant ongoing federal expenditure to maintain a deep draft shipping channel in the Strait. The numbers provided by the VMT/Orcem shipping projections were used to help make that case. The committee’s desire to reintroduce the kinds of commercial activity that require regular deep dredging of the Mare Island Strait to reach their first goal explains the early and consistent involvement of the VMT/Orcem principals on this ‘citizen’s committee’ and the MISEDC member's enthusiasm for the project.

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Residents concerned about potential environmental impacts of a neighborhood cement plant caught their first glimpse of the backroom alignment of public and private interests at a public forum. By this time MISEDC had been pursuing its goal to bring new heavy industry to the Vallejo waterfront for a year and a half.

On October 28, 2015, Mr. Steve Bryan, president of Orcem America, participated in a public community forum at Emmanuel Temple Church in Vallejo. Coming from outside the community, it appears that he had not fully appreciated the need to keep the MISEDC activities out of the public eye. That need was well understood by the local participants, as demonstrated by the extent of the activity that they managed to keep hidden for so long, even from fellow councilmembers.

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The following exchange with Mr. Bryan prompted residents to begin resorting to public records requests to reveal the level of premature commitment by their elected representatives to a project certain to carry significant environmental impacts. They were shocked to find that a majority of their city council had already joined forces with the applicants with no information at all about the environmental consequences.

Here is a transcript of that exchange between Mr. Bryan and members of the audience as he reveals the existence and motivations of MISEDC to the public for the first time:

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Steve Bryan: 137:31 “The other part about it is, why we are there, again there was some controversy about whether that is true or not, that is the only deep water berth in Vallejo. Yes, there used to be submarines and yes there used to be that but those have been filled and need millions of dollars of dredging and we have been participating even though we are not here in the Mare Island Economic Development Committee in order to try to get federal funding or other funding to open that up to create opportunities for better business on Mare Island.”

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“Some boat owners say that you wouldn’t even have to dredge it [the proposed VMT site] you could just come in with a ship and it would blow away like flour. It would just blow away! But by law, it should really be dredged and you come in and you sample the material and they tell you what is in it and they tell you where to put it. So it will be dredged.”

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Audience Member: 1:57:13 “I am curious, you said you have been participating in the Mare Island Economic Development Committee and I am fascinated with that and want to learn about that...”

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Audience Member (again): 2:02:34 “You said you are participating on the Mare Island Economic Development Committee or some other economic development committee and trying to bring in other big businesses. I want to hear more about that.”

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Steve Bryan: 2: 02:45 “So, um, people are interested in bringing business to Mare Island. There is a lot of underutilized capacity there. That has been, from what I read, the condition that there hasn’t been enough business coming in there with Lennar. A lot of the comments were that if you had deep water capacity so that you could bring in bigger ships, there are businesses that would come in and take advantage of that.”

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“Once the Navy left there was a kind of Catch 22 with the Corps of Engineers that they will dredge where there is economic activity or a need. So when the Navy was there they kept it down to maintain the Navy. When the Navy left it, they stopped and it silted up. Now, if you go to the Corps and say ‘will you dredge this,’ they say ‘prove that there is economic activity and I will dredge it.’ But, well, I can’t have economic activity until you dredge it.”

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“So, [Councimember] Jess Malgapo, [Councilmember] Pippin Dew, the guys at Lennar, the guys at Mare Island Dry Dock, they formed an informal committee and they are trying to puzzle and figure out how they can get federal grants, how they can get political support to get this thing dredged to stimulate the economy on Mare Island. They invited us because if we can put down our numbers and say that we are in there. If we can make the numbers look higher for volume and make it more tangible, then this proves that if you have a deep water berth then companies will come. So we are kind of the proof, let’s say the evidence, that they put in there and why they can support getting federal dollars to dredge.” (2:04:35)

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Audience Member 2:04:36: “So this is an informal economic development committee so does that mean that there are no official records? Is that the case? Or are there minutes? So we would have to ask Malgapo?”

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Steve Bryan: “I have no idea. Yeah I was asked to participate and fill out some forms by the Economic Director from the City that say our volumes. Again just being as helpful as I can to help them to get money to stimulate the economy. But when you shake your head like that, you look like there is some conspiracy. Well what conspiracy?”

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The responses to public records requests from the City lay out that conspiracy in a series of communications among members of MISEDC, and internal discussion among members of City staff. It’s unclear if all who came in contact with MISEDC understood that this was not an officially sanctioned committee of Vallejo government. Whether U.S. Representative Thompson, who attended a meeting, or the members of the Army Corps who became the focus of the lobbying effort were aware is questionable given the array of politicians and industry representatives involved. It certainly appeared from the membership roster as though it was sanctioned by the entire city council.

One group of actors outside the committee who were well aware of the true nature of the MISEDC were members of the Vallejo City staff, up to and including the City Manager. As Councilmember Malgapo assigned city staff to work on his private project and even drafted several members to serve on his committee, an internal debate was taking place over the inappropriate and illegal relationship and use of scarce City resources to pursue an unsanctioned private economic development initiative.

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By September 18, 2014, the Community & Economic Development Director had clearly had enough. Mr. Sawicki writes to the City Manager Mr. Keen:

“As we discussed, I believe the direction of staff and allocation of resources for this project is really something that should come from the whole Council through you. Staff's participation in the "ad hoc committee" to date has already diverted our limited ED resources from our other priorities. The Councilmember [Malgapo] is further committing the City and staff to this project, without us fully understanding the implications.”

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On October 3, 2014 the City Manager writes:

“...we need to have the rest of the council aware of what has been going on with Council member Malgapo's Committee, and make sure they are buying in to this as a Council priority.”

The committee has now been working for six months with the knowledge of then Mayor Davis and participation of three councilmembers who still sit on the lead agency that will vote on the VMT/Orcem project application. By this time they have conducted an extensive lobbying campaign that enlisted regional politicians and hosted Army Corps officials on a local tour. The pitch to the Army leaned on the projected ship traffic numbers for the VMT/Orcem project to help justify the expenditure of federal funds to subsidize heavy industry that requires deep draft ship access.

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The Army Corps representative who turned down Mayor Intintoli’s request to resume dredging in 1999 was apparently impressed this time around with the addition of the VMT/Orcem numbers. Instead of saying no, he informed the committee that the next step would be the submission of a formal Section 216 Initial Appraisal Letter, something that would require approval by the entire city council. However, the need to make the three outside councilmembers aware of what had been going on with Mr. Malgapo’s committee apparently had receded in the weeks since Mr Keen’s assessment.

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At the October 28, 2014 Special Council Meeting with a packed agenda of unrelated business, the last item on the Consent portion of the agenda and approved without discussion is Item J, to Authorize a Letter to the United States Army Corps of Engineers to Assess Resumption of Mare Island Strait Dredging. This item was presented as simply an exploratory inquiry at no cost to the City, just a letter from the City Manager. There was nothing at all to indicate that the MISEDC even existed, or all the staff time spent in research and lobbying, or the fact that Army representatives had just come to the City for a local tour and explained in detail how to make the request.

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The actual document is buried on page 374 of the 377 page staff report. It didn't merit a second glance in the context of all the business the Council was trying to deal with at the Special Meeting. There can be little doubt that this was intended to get the whole Council on record as approving the action, while still revealing nothing to the public or three of our elected representatives. Since none of the players acted to address the need identified by Mr. Keen to inform the other members of the Council, presumably the actors agreed there would have been a problem getting them to 'buy in’ if they were now told of the activity.

On January 9, 2015 Mr. Malgapo tells the committee:

“The US Army Corps of Engineers informed me that they have identified a source to fund the Section 216 study. The amount is $20,000 and they are now in the process of staffing the project team.” He goes on to talk about expanding the committee efforts and drafts two more City employees to attend his private committee meeting: “We will be taking on new initiatives for 2015 to build on what we have accomplished so far. Fiona and Roland - if you could attend this initial meeting for 2015 it will be great.”

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On January 9, 2015 Mr. Sawicki again raises the issue of Councilmember Malgapo’s inappropriate behavior to Mr. Keen and the Assistant City Manager Mr. Whittom:

His directly asking additional city staff (Fiona, Roland) to attend without clearing with you and David, or clarifying what their role or need is.”

The terse response he received from the Assistant City Manager made it clear that the senior staff had little inclination to do more than humor and manage a councilmember who seemed to think City staff worked for him directly. On January 11 Mr. Whittom responds:

“Mark, What do you propose as the solution to the items you raised? Let us know.”

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Mr. Sawicki was pointing to an egregious and repeated violation by Councilmember Malgapo of the noninterference clause in the City Charter. Vallejo City Charter Section 503, Noninterference, reflects an amendment adopted by electors of the city in November of 2000. It reads in part:

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Except for the purpose of inquiry into the affairs of the City and the conduct of any City department, office or agency, the Council or its members shall deal with City officers and employees who are subject to the direction and supervision of the City Manager solely through the City Manager and neither the Council nor its members shall give orders to any officer or employee either publicly or privately nor shall they attempt to coerce or influence the City Manager in respect to any contract or purchase of supplies or any other administrative action... Violation of the provisions of this Section by a member of the Council shall be a misdemeanor, conviction of which shall immediately result in forfeiture of the office of the convicted member.

The public record of staff emails reveals numerous instances where Mr. Malgapo gave staff members work assignments directly for his private committee without going through the City Manager. Mr. Sawicki was trying to enlist help from senior staff to restore a proper working relationship, but received no support from the City Manager’s Office. He resigned his position as Community & Economic Development Director and went to another city shortly after Mr. Whittom asked him what he proposed to do about the improper behavior.

The thorny problem remained of how to get the three councilmembers left in the dark somehow on the record as “buying in” to using City staff to work on this unsanctioned development initiative incorporating the VMT/Orcem project. The conspirators settled on a strategy that relied on an intentionally vague placeholder reference to dredging buried in a laundry list of goals for the City, and once again a document slipped into a packed Council consent calendar agenda. The strategy amounts to a thinly veiled ruse that allowed the MISEDC members and staff to pretend that the entire council had endorsed a process three councilmembers still knew nothing about.

On February 19, 2015, the entire council participated in a periodic goals generating work session. During the session individual members were asked to list their priorities, and Jess Malgapo included 'dredge the Strait' in his list. Dredge the Strait also makes it into their extensive multi-department laundry list of goals summing the results of the session.

There was no discussion during the work session that would distinguish the routine spot dredging required for marina maintenance from the 38 foot deep marine superhighway Mr. Malgapo’s secret committee had in mind. There was no indication given of the extensive lobbying campaign conducted by MISEDC laying the groundwork for a federal dredging subsidy, or even that the ad hoc committee existed at all. Members of the city staff and MISEDC chair Malgapo chose to interpret the mere inclusion of ‘dredge the Strait’ in the goal setting laundry list as somehow retroactively supporting the goals of MISEDC and the use of paid city staff time in the activities of an unsanctioned committee.

Three months later at the May 12, 2015 city council meeting and way down at Consent Agenda Item L, is the vote that top city staff believed would somehow justify the involvement of public employees in an unsanctioned private initiative. It was just a routine item to approve the goals session report, which starts on pg 172 of the Staff Report. Again buried in the laundry list of goals included in the report is the simple vague entry - “dredge the Strait.”

At no time was there any discussion with the entire Council of what is clearly a major planning initiative in direct conflict with the results of the ongoing public effort to update the general plan. Yet here is how that vote is portrayed in the official history of the MISEDC written for a Special Meeting of MISEDC on August 25, 2015 hosting 5th District US Congressman Mike Thompson:

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The city council would later adopt dredging as one of the economic development goals

The council vote formalized the participation of “City Staff.”

The Vallejo Marine Terminal/Orcem America proposal began to gain traction... an amazing project for Vallejo

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In an email to MISEDC members dated May 20, 2015, Mr. Malgapo congratulates the committee on their success at getting the three councilmembers to ‘buy in’ on the record without actually revealing any of their activity or goals: “Our notable accomplishments include the full support of the Vallejo City Council and staff. Our committee work surfaced as a Council priority after the goal setting session last February 18th, 2015. We also have the support of USACE; area Legislators at the County and State levels. We have the solid backing of industry leaders represented in the committee.”

One thing they did not have was the support of the citizens and residents of Vallejo, who expect transparency in the function of their government. The people need to be able to believe their councilmembers when they approve guidelines that call for public participation in planning for the future character of their city. What the MISEDC participants also lacked was any information at all regarding the environmental impacts of the “amazing" VMT/Orcem project, since the first draft of the environmental impact report had not yet been completed. There can be little doubt that any semblance of objectivity with regard to the relative merits of VMT/Orcem on the part of the committee participants had long since disappeared.

Previous agendas for the MISEDC included the following disclaimer at the top: “MISEDC is an Ad Hoc Committee not currently sanctioned by any public agency but was formed for a specific purpose and will cease to exist once the stated goals are achieved.” While their second stated goal is open-ended, the declaration does capture the true nature of the committee.

In the agenda sent out on May 20, 2015 that qualifier had changed to reflect Mr. Malgapo’s conviction that they had finally solved their full Council endorsement problem more than a year after the formation of the committee. Now it read: “MISEDC is an Ad Hoc Committee not currently sanctioned by any public agency but has the endorsement and support of the Vallejo City Council as an informal citizens committee.” When revealed through public records requests, Councilmember Dew-Costa felt it necessary to apologize from the dais for that characterization to the three councilmembers who had not been told about the committee or its activities.

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On September 3, 2015 the draft EIR for the VMT/Orcem project was finally completed, three years after the lease transfer. In announcing the release to fellow committee members on September 15, councilmember Malgapo explicitly linked the goals of the MISEDC to approval of the VMT/Orcem project:

“You will recall that we have two goals; one is to search for dredging funds but our second goal is to explore how Mare Island Straits could be transformed into an economic driver for the City of Vallejo and Solano County. In this regard, let us congratulate our committee members, "Vallejo Marine Terminal / ORCEM" as they reached a key milestone with their project. Their EIR was released very recently on September 3, 2015. This document took many months to complete. The 45 day public comment period is now underway. Here's the link to the EIR. Let us all wish them all the best and a successful public review.”

A Collision of Vision

As the comment period for the VMT/Orcem draft EIR was closing, the General Plan Working Group, the Economic Vitality Commission, and the Planning Commission conducted a joint meeting on November 23, 2015. The participants intended to discuss and finally approve a Preferred Future Scenario, the culmination of the two year public planning effort. An updated General Plan Map and Zoning Map would be based on the proposed land use designations shown on the Preferred Scenario map approved by the Working Group and Commissioners. The map reflected a change in zoning for the parcel proposed for the VMT/Orcem project to a light industrial classification, with a continuous walking/bike trail along the waterfront connecting south Vallejo with the downtown.

After years of effort and millions of dollars invested in the general plan update process to develop a shared vision for the waterfront, the participants were stunned to receive a note from the City Attorney saying that the discussion to approve the preferred scenario was “potentially inappropriate” with the VMT/Orcem application pending. The project is considered heavy industry and would not conform with the zoning change, and if approved the project would shut out all public access to that stretch of the waterfront. The City Attorney cautioned that when zoning changes to a General Plan may cause a loss in property values, a property owner can make a legal "takings" claim against a City. The Attorney urged great care be taken any time this type of change is even discussed by a public entity.

The message from the City Attorney pointed to the Nasha v. City of Los Angeles legal precedent where a member of a Planning Commission made public statements that could be interpreted as an indication of bias against a project ahead of a public hearing. Project applicants have a right to a hearing before fair and impartial decision-makers. Public statements in advance opposing the project or land uses that it would allow can indicate disqualifying bias. Expressing the desire to change the zoning in a way that would shut out a proposed project may be enough to demonstrate an unacceptable probability of bias that would disqualify an official from participating in the decision, according to the City Attorney.

Members of the commissions and the General Plan Working Group were livid, as reflected in the following written excerpts from some of the many responses to the City Attorney’s message to the participants:

“...all planning commissioners present have already expressed support for the Vision that conflicts with the VMT-ORCEM application, so all would theoretically have to be recused from further voting. To assume that commissioners tasked with developing and approving a long-term vision for Vallejo have somehow crossed the line by showing bias, and supporting a vision that may not align with a current land use application is difficult to comprehend.”

"The city staff, following the advice of legal counsel, is attempting to alter and suppress the vision of the citizens of Vallejo, as represented by the General Plan Working Group, the Economic Vitality Commission and the Planning Commission. The proposed land use map included in the approval was also the topic of in-depth discussion, showing continuous waterfront public access with trails and open areas along the entire waterfront from the downtown Brinkman’s boat launch to Sandy Beach Road in South Vallejo.

Members of the General Plan Working Group have been advised verbally, followed by a written legal opinion from the City Attorney’s office that the vision and land use indicated on the map cannot be presented as the commissions voted on because it may interfere with the rights of the applicant for the Vallejo Marine Terminal. This decision totally favors the applicant at the expense of suppressing the vision for the waterfront as expressed and voted upon by the members of the three commissions.”

“I am referring to the overwhelming desire, of practically everyone present, expressed verbally by several participants, concerning the long-term vision for Vallejo to transform the entire waterfront from the Brinkman’s boat launch to Sandy Beach road, enabling public water access and beautification with trails and public spaces.

The benefits of such a plan are unquestionably sound and needed:

Continuity of the San Francisco Bay Trail along the bay.

Connection of the California Maritime Academy to the downtown enabling a safe and efficient way for cadets to go to and from the downtown on bicycles.

Connect South Vallejo residents to the downtown, enabling a safe and easy access by foot or bicycle to the downtown area.

This aspect of the “River & Bay City” scenario was by far the most sought-after element in all the workshops throughout the city in the recent months.”

"At the last GPWG joint meeting members were told that the comments we made as a group would be incorporated into the "Draft Future Scenario Notes and Map" going to Council for approval on Dec 22? (the day after our next GPWG meeting?). We were told that the map and notes would be updated to incorporate comments. At the conclusion of the meeting the GPWG, the Planning Commission and the Economic Vitality Commission voted to approve the document with comments and map changes made during the meeting.

Today, Jan 2, [redacted] called to alert me to the following:

a) Continuous public access along the waterfront would not be shown on the map going to council but in another section of the final plan

b) Industrial uses would be shown adjacent to the waterfront on at least two sites, (the location of the 65 yr Kiewit lease and the site of the pending VMT/Orcem Project).

Showing this development pattern as the GPWG approved "Draft Future Scenario Notes and Map" is not only an inaccurate reflection of comments and map changes requested at the meeting, but is entirely inconsistent with the long range development of the Eastern side of Vallejo Straight as a mixed use, publicly accessible waterfront which GPWG members and the general public has envisioned throughout the 2 year planning process. (Non conforming leases or pending projects cannot be allowed to shape a long range vision for the City).”

In spite of these protests the City Attorney’s opinion prevailed. A revised map reflecting the legacy heavy industry use designation for the proposed VMT site and eliminating continuous public access along the eastern waterfront was published as the work product of the general plan update process.

While the public planning process was derailed over fears that any indication of bias would necessitate recusal from a future vote on the project, the clandestine private planning process engineered by members of the lead agency and special interests faced no such impediments. The Army ultimately spent 20,000 federal tax dollars on a deep dredging feasibility study that relied in part on the approval of the VMT/Orcem project. As reflected in the stated goals of the MISEDC, this kind of deep dredging is intended to attract to the Vallejo waterfront more heavy industry - an outcome fundamentally in conflict with the results of the public planning process. The work product of the MISEDC subterfuge appears on the ACOE web site here...

A Defect in Cure and Correct

As the internal committee and staff communications began to surface in response to records requests, it became apparent that a majority of the council had violated the intent of California’s Open Meeting Act and the Brown Act. The Open Meeting Act implements a provision of the California Constitution which declares that:

“ ...the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny", and reaffirms: "The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."

The Brown Act similarly guarantees the public's right to attend and participate in meetings of local legislative bodies. The City Attorney announced a ‘cure and correct’ hearing on January 5, 2016 to address the public uproar over the apparent Brown Act violations. The City Attorney said at the hearing that she did not believe a Brown violation occurred since four members of the lead agency never attended a MISEDC meeting at the same time.

While only three councilmembers were listed as official ad hoc committee members, then-Mayor Davis was also informed of the committee’s activity and yet failed to bring it to the entire Council. The first MISEDC agenda from April 30, 2014 includes this item:

“City Council reps to brief Mayor about the creation of an Ad Hoc Committee whose mission will be to specifically look for ways to facilitate the dredging of Mare Island Straits.”

The Mayor was later scheduled to speak to the MISEDC at their May 20, 2015 meeting. An exchange between the City’s Economic Development Manager and Councilmember Malgapo indicates that the participants were well aware of the obvious Brown violation if a majority of the Council were to attend the same private committee meeting:

Sent: Tue, May 19, 2015 5:50 pm

Subject: Tomorrow's meeting

Jess

I just noticed that with the Mayor, you have invited 4 of the 7 council. We can only have 3 at this meeting. Perhaps you already know that someone else is not going to make it?

Kathleen

Kathleen Diohep

Economic Development Manager

Councilmember Aliga will not be attending.

Thank you Kathleen.

Jess

The contention that no Brown violation can occur unless a majority are in the same place at the same time is incorrect, according to the California Attorney General’s Office. After first discussing the scenario where a majority is present at the same private meeting, the official Brown Act pamphlet published by that Office continues:

"Second, the Act specifically prohibits any use of direct communication, personal intermediaries or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken. (§54952.2(b).) Most often this type of meeting is conducted through a series of communications by individual members or less-than-a-quorum groups, ultimately involving a majority of the body’s members. These meetings are called serial meetings."

The record shows that the Mayor was kept in the loop through communications among individual members from the ad hoc committee’s inception, while three councilmembers were not informed of any of this activity. Mayor Davis was complicit in keeping the existence of the committee from three members of the city council and allowing the clandestine activity to continue until it was ferreted out by members of the public. Knowledge of the activity while failing to bring this private development initiative involving City officials and resources forward for open public discussion amounts to “concurrence as to action to be taken” by Mayor Davis.

The City Attorney further maintained at the ‘cure and correct’ hearing that there was no Brown violation because no work product resulted from the committee’s activity. That contention ignores the Section 216 request and the resulting Army Corps expenditure on an initial study and federal listing of the project, which came directly from the clandestine committee’s research and lobbying efforts with assistance from paid City staff.

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The exposure of these abuses of public office and wasted tax dollars, followed by transparent attempts to sweep this misbehavior under the rug has badly shaken the confidence of citizens in the integrity and transparency of their local government.

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Very Special Interests

The air of cronyism that surrounds this private development initiative and the special interests that support it only adds to the crisis in public confidence. The MISEDC councilmembers had obvious political and financial motives for aligning with the project in addition to any misplaced altruistic desire to establish an economic driver for the City and county.

All that support from the “area Legislators at the County and State levels” that Mr. Malgapo refers to comes as no surprise given that the fiscal analysis for the project paid for by the applicants showed the greatest benefit going to the county. It is also not surprising that regional politicians would line up to support such a project, when few of their own constituents would live with the unexamined environmental impacts. For local politicians with ambitions for higher office, cooperating on an ad hoc committee with regional politicians can provide valuable connections leading to future career opportunities.

VMT/Orcem made significant campaign contributions to the MISEDC councilmembers along with the county building trades council-affiliated PAC. The latter group brings in members wearing safety vests to pack the chambers each time an action related to the VMT/Orcem project comes before the Council. Their members would benefit from the temporary construction jobs created in developing the heavy industry infrastructure. The Jumpstart Vallejo PAC that supports the MISEDC councilmembers continues to offer the following distorted picture of the MISEDC on their web site:

"The Mare Island Strait remains as one of the more unique opportunities and the best bet to return the island to its role as a driver of economic development. Several industries have located here because of the unique ability to be adjacent to freeways and water for transport. The problem facing many more that would love to call Vallejo home is the silt and sediment in the Napa River. Long gone are the days of the Army Corp of Engineers dredging the strait. That’s why it was so refreshing to see city, state and federal leaders team with the business community to find a way to once again dredge the straits and welcome more businesses. Dredging is currently being done by businesses like the Mare Island Dry Docks who have to make sure the large ships clear the bottom when they come in for service."

"The Mare Island Strait Committee, led by Jess Malgapo and Rozanna Verder-Aliga, was a city sub-committee that volunteered their time to search for any and every dollar to once again free the waterway to attract business. They were successful in getting a $20,000 study completed for free that studied the needs and opportunities of the waterway. It’s a shame however, that the committee was disbanded just before coming under attack in the community for a supposed Brown Act Violation. That claim was quickly dismissed just about the time our neighbors to the north in Napa were able to secure dredging funds that will stop at Highway 37. It’s amazing to see what a city can do with public support and a plan that wasn’t attacked."

The PAC continues to try to confuse the public about the fact that this was an unsanctioned committee, and conflates the dredging for ordinary shallow draft navigation of the river up to Napa with maintaining the 38 foot deep trench advocated by the MISEDC that would accommodate large cargo vessels. The echoes of the MISEDC vision and goals to foster waterfront heavy industry sound familiar.

This influential political organization provides much of the campaign support for the MISEDC councilmembers who run on their slate. The building trades special interests were well represented on the ad hoc committee as part of a long-established political network. The September 15, 2015 MISEDC agenda notes the move of an early member of the MISEDC to his new position: “Finally, I want to thank departing committee member, Danny Bernardini (District Rep for Senator Wolk) who was with us from the very beginning, and is moving on to a new career with the Napa Solano Building Trades council.”

That public perception of cronyism surrounding the application process for VMT/Orcem appears to have been shared by those witnessing the backroom interaction up close and personal. On May 25, 2015 the Economic Development Manager gives the City Manager a succinct description of the MISEDC network: “I tried to cancel last week’s meeting as we did not have the study from the Corps yet. Jess would not cancel, likely as he had invited the Mayor. This group is reps of a full set of elected officials and the maritime industry (with MIDD and VMT/Orcem being the most frequent attending).”

Just Can't Say No

In the 2016 election cycle, the incumbent MISEDC councilmember up for re-election won, along with Mr. Sunga, a former councilmember who was termed out of the previous election, also running on the Jumpstart PAC slate of candidates. The local paper describes him as councilmember Malgapo’s political mentor and a fellow former naval commander. Along with the three MISEDC participants on the council they have formed a majority voting to keep the VMT/Orcem project alive.

Following extensive public and resource agency comments on a VMT/Orcem draft environmental report that revealed a number of significant impacts, the City staff and consultants who had been working on the analysis for several years recommended in 2017 that the City reject the project and discontinue further environmental review and expenditure of resources. They found the industrial land use and impacts to be incompatible with the surrounding residential neighborhoods and the nearby elementary school. The Planning Commission subsequently voted to deny the site development and use permits with only one member dissenting.

When the applicants appealed the Planning Commission decision to deny the permits to the City Council as the lead agency, the three MISEDC participants and Mr. Sunga voted to uphold the appeal. They directed the City staff and consultants to go back to work to finish a final EIR and draft a Statement of Overriding Considerations to allow a vote to approve the project in spite of the significant environmental impacts.

The three councilmembers who were excluded from the MISEDC and retained their objectivity with regard to the potential benefits and negative environmental impacts of the project all voted to accept the Planning Commission decision and staff recommendation and turn down the appeal. A series of votes to certify a final EIR and approve the project could now come before the City Council by the end of the year.

The Vallejo City Hall Council Chamber is completely filled prior to Monday night’s special planning commission meeting regarding the VMT/Orcem project application. JOHN GLIDDEN — Times-Herald

Conclusion

The documents received through public records requests reveal that three current members of the lead agency early on abandoned any semblance of objectivity regarding the relative merits of this project, before knowing anything about the environmental impacts. Returning to the framing of the proper relationship under CEQA laid out by the court in the Ceres case:

“The relationship between a lead agency and project applicant is unique. Before project approval, the agency must objectively judge whether the project as proposed is environmentally acceptable and therefore must make a decision about whether it will align itself with the applicant in part, in whole, or not at all. Only after approving the proposal can the agency be said to join forces with the applicant. There may be, and typically are, extensive communications between them, but they cannot yet be said to be “on the same side.” Before project approval, therefore, the agency does not have even partially common interests with the applicant. The nature of its interest is held in abeyance until it decides whether to approve the project.”

The MISEDC participants serving on the lead agency unmistakably joined forces with the applicants long before any environmental review, and in private communication openly declared themselves to be on the same side. The final EIR they now insist on finishing can only be regarded as a necessary step to get the lead agency to a vote to approve the project, rather than a genuine effort to generate the environmental information needed to carefully weigh the decision.

Claims that Councilmembers Malgapo, Dew-Costa, or Verder-Aliga can now weigh the relative merits of the project with an open mind are simply not credible. They violated the public trust by colluding with the applicants in secret using public resources, looking to benefit their special interest friends and political supporters at the expense of local residents who would bear the brunt of the environmental impacts they failed to even consider. The public record gives the lie to any attempt to pass the committee off as a minor affair and ‘just about dredging.’

The effort to use the VMT/Orcem project to help convince the Army Corps to resume routine deep dredging the length of Mare Island to a depth of 38 feet was not intended to result in minor changes that might save some local businesses in maintenance costs. A resumption of regular deep dredging for large cargo vessels constitutes a major planning initiative - the marine equivalent of constructing a new highway - and the stated goals of the MISEDC rely on the assumption that a certain type of development would follow. A recurring theme when the MISEDC participants talk about their goal to restore the Strait as an economic driver is the belief that a deep shipping channel will attract to the Vallejo waterfront more heavy industry that needs that kind of access, like the Orcem cement plant.

The MISEDC councilmembers made a conscious choice to put their own personal vision in place of the community vision developed through the general plan update, even as they voted to approve Guiding Principle language that embraces community participation:

“Vallejo supports and depends on active community participation. Vallejo provides timely and understandable information on planning issues and projects, and community members participate directly in shaping plans and policies for the city’s future."

Those statements ring hollow in light of the backroom MISEDC activity and the treatment afforded the VMT/Orcem application.

The proper remedy to restore public confidence, to cure and correct the serial meeting Brown violations, and restore the proper alignment of public and private interests under CEQA is recusal from all votes regarding VMT/Orcem by the three MISEDC councilmembers. Just as applicants have a right to a fair hearing in front of an objective decision-making body, so too do citizens have the right to expect transparency in the function of their local government. Residents have a right to the environmental protections afforded under CEQA without the process degenerating into an empty box-checking exercise in service of a foregone conclusion. Present and future generations of residents have a right to rational planning decisions based on objective cost/benefit analyses that give sufficient weight to environmental impacts.

The actions of councilmembers Malgapo, Dew-Costa, and Verder-Aliga as participants in the MISEDC disqualify them as objective decision-makers with regard to this project. Their votes to uphold the appeal from the Planning Commission should be nullified and that decision reversed. If the application comes before the lead agency in the future they must recuse from any vote regarding the Vallejo Marine Terminal and Orcem America application.